To Net Maximum Impact, Collective Action Is Needed

From Washington Lawyer, February 2016

By Tim Webster

A "collective action problem" is one in which the common good is impeded by disincentives that discourage joint action. The mice, for example, all agree it would be beneficial to tie a bell to the cat's collar, until it comes time for an individual mouse to volunteer for duty. The concept is loosely applicable to the delivery of pro bono legal services. We have one of the best (if not the best) pro bono cultures in the country right here in Washington, D.C. But it is difficult to steer the many individuals and organizations that drive that culture in any unified manner, even though doing so could better prioritize and direct our efforts toward some of the District's most critical needs. But one initiative that is gearing up now might change all that.

In 2013 the D.C. Bar Pro Bono Center and the D.C. Access to Justice Commission convened a diverse coalition of legal services providers to discuss a new approach to harnessing collective resources and working with law firms. One of the greatest challenges for the coalition members' clients emerged as the area of focus: housing. Why housing? Housing is much more than a roof over one's head. Research shows that access to stable housing can promote positive education, employment, and health outcomes for individuals and families, factors that all are directly tied to the ability of D.C. residents to escape poverty (not to mention avoiding homelessness). The focus on housing thus has the potential for many collateral benefits. This and two other facts impacted the group's thinking.

First, housing in the District is unaffordable for many. The cost of living is high to begin with, even excluding housing costs. The District is often ranked in the top five most expensive cities in the country to live in. But housing prices are particularly high. One Bureau of Labor Statistics report found the District to have the highest housing costs in the country. The D.C. government currently owns about 8,000 public housing units and offers more than 10,000 housing choice vouchers. But the centralized waiting list for subsidized housing is closed—and has been closed since 2013—with more than 40,000 families on it. Furthermore, the pool of affordable housing units has been shrinking as well, as gentrification and condominium conversions abound.

Second, about 35,000 eviction cases are filed each year in the Landlord and Tenant Branch of the D.C. Superior Court—colloquially called "eviction court" by some practitioners. Anecdotal evidence suggests that 90 percent to 95 percent of tenants are unrepresented, while about that same percentage of landlords are represented. The stakes are incredibly high for many tenants. An eviction from subsidized housing, for example, can result in the loss of a housing voucher, which can quickly lead to homelessness.

The coalition agreed to coordinate resources to promote pro bono housing representation as an initial project of a broader D.C. Right to Housing Initiative. The initiative's other goals include addressing affordable housing, fair housing, and the shelter system. This project has grown to become a truly collaborative effort across the legal services provider community and boasts as members the Legal Aid Society of the District of Columbia, Bread for the City, the Washington Legal Clinic for the Homeless, Legal Counsel for the Elderly, the Neighborhood Legal Services Program, D.C. Law Students in Court, and the Washington Lawyers' Committee for Civil Rights and Urban Affairs, together with the D.C. Access to Justice Commission and the D.C. Bar Pro Bono Center.

Here's how the pro bono tenant representation part of the initiative works. Potential clients who are facing eviction from subsidized housing are offered representation. If the potential client would like an attorney, he or she is referred to one of the law firms participating in the initiative. A number of private firms have made leadership commitments to take cases and have sent lawyers to free training on D.C. housing law. Coalition members also provide subject matter experts as mentors for the firm lawyers who are assigned the cases, given that many of those lawyers have never handled a housing case before. Over time, the firms will work to develop their own internal expert mentors.

The project is not a pronouncement that only pro bono housing representation is valuable. Each year, many individuals, nonprofits, and small businesses depend on an array of critical pro bono services in multiple practice areas. The D.C. Bar Pro Bono Center and its volunteers alone touch the lives of nearly 20,000 D.C. residents each year in substantive areas ranging from bankruptcy to immigration to tax sales, and much of the alphabet in between. Nor is the project meant to suggest that legal services organizations should ignore their own missions to address collective action problems. Rather, it demonstrates that working together occasionally can yield multiplicative results that advance all participants' goals.

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This initiative is more than just a new program to me. It's personal. I've taken the training, which is detailed and substantive, and I have learned about "one-strike" cases, Bell hearings, and the Trans-Lux doctrine. I've also committed to supervising several cases, the first of which has already been resolved favorably for our client.
The initiative embodies the best our profession has to offer: expertise plus collective action equals impact. Entrenched problems like housing cannot be solved unless we try new ways to maximize the resources we have. If all our 100,000 members were to participate, we could solve more problems than just housing.